Q. In the 23 years that I have been a resident shareholder, the building has used my terrace cumulatively for facade work for over five years. In addition to the severe strain on my health, well being and work, these scaffolding installations have cost us thousands of dollars. We are responsible for moving and restoring items on our terrace, and the equipment has been mounted and dismounted at least six times. When we heard that “they” are planning to put scaffolding and major industrial equipment on our terrace again, we explored selling immediately. There are other locations in the building but ours is always used. Could the reason for our “special” treatment be a result of our struggle to improve the quality and integrity of our co-op building?

—Enough With Being Taken Advantaged Of

A. “Most cooperative proprietary leases contain provisions that permit access into a tenant-shareholder’s apartment, including the tenant-shareholder’s terrace, in the event the cooperative needs to perform repairs in its building,” says David Berkey, an attorney and partner with the Manhattan-based firm Gallet Dreyer & Berkey, LLP. “The language usually reads: “The Lessor and its agents and their authorized workmen shall be permitted to visit, examine or enter the apartment and any storage space assigned to Lessee at any reasonable hour of the day upon notice, or at any time and without notice in case of emergency, to make or facilitate repairs in any part of the building...” If there is damage caused to the apartment or terrace, the Lessor is required to restore the apartment or terrace to its “proper and usual condition.” Another paragraph of the proprietary lease usually exonerates the cooperative from liability when repairs made to comply with law extend over a long period of time. That section reads “No abatement of rent or other compensation or claim of eviction shall be made or allowed because of the making or failure to make or delay in making any repairs…to comply with any law, ordinance or governmental regulation…unless due to Lessor’s negligence.” In addition, some cooperatives adopt House Rules, which may require a tenant-shareholder to remove, at the tenant-shareholder’s expense, any planters or other terrace installations if the cooperative needs to have access to the terrace for the purpose of performing building repairs.

“The terms of the proprietary lease would generally make the cooperative liable for the cost of restoring the terrace, when items are dismantled to permit repairs to occur elsewhere in the building.  Unless this burden was shifted to the tenant-shareholder by House Rules or agreement, the tenant-shareholder may have recourse to recover some of these costs.

“In addition, a tenant-shareholder may have recourse against the cooperative when the tenant-shareholder is precluded from using a terrace due to the danger posed by the cooperative’s construction equipment or materials or the condition of the terrace. In the recent appellate case, “Goldhirsch v. St. George Tower & Grill Owners Corp.,” a tenant-shareholder who shared a 780-square-foot terrace with his neighbor was allowed to bring a damages claim against his cooperative when the cooperative declared the terrace “off limits” so that repairs could be made to the terrace and the building. The court held that the cooperative breached the implied warranty of habitability that is read into every lease because the damage to the terrace and its closure made it unfit for the uses reasonably intended by the cooperative and the tenant-shareholder. The tenant-shareholder was found entitled to an abatement of his maintenance for the entire period of time that the terrace was closed.  The tenant-shareholder also claimed that the cooperative should pay it damages for its delay in making repairs to comply with Local Law 11 requirements to maintain the building façade. Here, the court held that damages could only be awarded if the cooperative was negligent in the performance of its repairs, causing undue delay in completion of repairs that were required to comply with law.

“The reader will have to review the reasons for the closure of his terrace. If the terrace was declared off limits due to building repairs that were not required by law, then he may have a claim for breach of the warranty of habitability.  If the terrace was closed in order to comply with Local Law 11 requirements, then the tenant-shareholder may be entitled to compensation if he can show that the cooperative was negligent when performing the repairs, causing the repairs to take an excessively long period of time.

“Finally, the reader asks if he may have a claim because other tenant-shareholders with terraces are not being subject to terrace closures, while his terrace is consistently being used as a staging area for building repairs. If it can be shown that he is being unfairly discriminated against, then he may have a claim that the board is not treating all shareholders equally and is breaching its fiduciary duty owed to him. A board is required to treat similarly situated shareholders equally and should not take actions that might adversely affect one tenant-shareholder’s apartment. This is a difficult claim to prove as the courts give great deference to a board’s decisions concerning the method and manner of making repairs because of the “business judgment rule.” That rule bars judicial inquiry into a board’s decisions when the board acts in good faith, in the best interests of all tenant-shareholders, and in a non-discriminatory manner.”